Allahabad High Court
Sanjeev Sahu And 4 Others vs State Of Up And Another on 28 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 13.02.2023
Delivered on 28.02.2023
Court No. - 71
Case :- APPLICATION U/S 482 No. - 46541 of 2018
Applicant :- Sanjeev Sahu And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajiv Lochan Shukla
Counsel for Opposite Party :- G.A.,Meera Verma,Rajan Upadhyay,Ramesh Upadhyaya,Ronak Chaturvedi,Shailesh Pandey,Shailesh Upadhyay
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicants and Sri Arun Pandey, learned counsel for the opposite party no. 2 and perused the record.
By moving this application under Section 482 Cr.P.C. the applicants seek to invoke the inherent jurisdiction of this court to quash the summoning order dated 29.11.2018 passed by the Special Judge, POCSO Act/Additional Sessions Judge, Court No. 6, Ghaziabad and the entire proceedings of Complaint Case No. 77 of 2018 (X Kumari Vs,. Sanjeev Sahu and others) whereby the applicants have been summoned to face the trial under Sections 354, 354B, 452, 504, 506 IPC, Section 7/8 POCSO Act and Section 3 of SC/ST Act, Police Station Indrapuram, District Ghaziabad.
As per facts of the case, an application under Section 156 (3) Cr.P.C. was filed by the minor X Kumari on 01.10.2018 with the allegation that her parents do the work of ironing the clothes since last 17 years in Vartalok Apartment. They also do the work of washing the vehicles in the society. All the opposite parties (present applicants) have an evil eye on the applicant and her mother. The applicant and her mother have been misbehaved and molested many times at the hands of these persons, but because of the intervention of other people of the society, no complaint was made against them. They also used to eve tease them and on their protest they are given threat to turn out from the society. On 23.09.2018 (Sunday) at about 5.00 p.m. when her mother was doing iron on the clothes and she was studying sitting near her mother, all the five persons namely, Sanjeev Sahu, Dushyant Singh, Harish Chand Joshi, Mohan Lal and Uday Narayan, Dushyant using caste based words made sexual connotations, Harish Chand Joshi also made the same remarks against her, Uday Narayan caught hold of her, took her in the adjacent tin shed and torn her shirt. All the rest persons (opposite parties/the applicants) also came. Sanjeev Sahu caught hold of her hands and Mohan Lal caught hold of her legs. She was disrobed. She was crying but they were not ready to hear anything. As soon as Harish Chand Joshi entered his penis into her vagina, immediately on the hue and cry of the applicant and her mother, Shilpi Gupta and Sandeep Gupta, the residents of the same society and many other persons came, seeing them opposite parties made good their escape. After some time they again came, abused the applicant and her parents, destroyed the tin shed and other articles kept there. The police also came on the spot, but forcibly got written a different application from her. One policeman, Sachin Malik gave her threat also. On 25.09.2018, she sent a complaint to the S.S.P., but no case could be registered, hence, the prayer was made to issue a direction for lodging the FIR.
After summoning a police report on this application, the trial court registered this application as a complaint and after recording the statements of the victim under Section 200 Cr.P.C. and witness Shilpi Gupta under Section 202 Cr.P.C., by passing the impugned order dated 29.11.2018 summoned all the above five applicants to face the trial under Sections 354, 354B, 452, 504, 506 IPC, Section 7/8 POCSO Act and Section 3 of SC/ST Act.
With the prayer of quashing this summoning order and the entire proceedings of the complaint above, the present application has been moved by the applicants and in the supporting affidavit it is alleged that though the case is sessions triable, even then the whole witness list of the complainant was not exhausted by the trial court. The statement of the complainant was noted by the reader of the court, while as per the circular letters issued by this court time to time, it must be noted down by the Presiding Officer himself. There is overwriting on the date of incident in the statement of the witness Shilpi Gupta. The whole premises including the spot in question is covered with CCTV cameras. No CCTV footage was placed before the trial court. Neither any medical of the alleged victim was done nor the torn clothes were produced before the court. The mother of the alleged victim, who is said to be present on the spot from the very beginning of the alleged incident, has not been examined and the applicants have been summoned by the trial court ignoring the above facts.
It is further said that the complaint has been lodged on false grounds. In fact, the father of the alleged victim had illegally occupied land and constructed a 'jhuggi' inside the Vartalok Apartment. The Residents Welfare Association of Vartalok Apartment sought to remove the same and in a bid to create pressure on the Residents Welfare Association this complaint has been filed. The truth is that on the same day i.e. on 23.09.2018 the officers of the Residents Welfare Association in the presence of the officers of Vartalok Sahkari Awas Samiti had called on No. 100 for police force and in the presence of police force, the illegal constructions made by the father of the alleged victim inside the society was removed. This illegal encroachment was protested by the alleged victim, opposite party no. 2 and her family members and a pressure was made by them on the Residents Welfare Association to reconstruct the illegal 'jhuggi'. The video recording of the said operation was also made. On the application under Section 156 (3) Cr.P.C. of opposite party no. 2, the police also submitted the report that the officials of Residents Welfare Association of Vartalok Apartment in the presence of Vartalok Sahkari Awas Samiti officials called the police on number 100 and in the presence of police force, the encroachment was removed on 23.09.2018 under the video recording. In this regard, with a view to create pressure upon Residents Welfare Association of Vartalok Apartment, the applicant has made totally false allegation.
The applicant no. 1 - Sanjeev Sahu is aged about 47 years and is ex-President of Vartalok Residents Welfare Association and also the Chief Manager, Times of India, New Delhi, applicant no. 2 - Dushyant Singh is 32 years old practicing Advocate in New Delhi and the resident of the same society, he is the legal adviser of the society, applicant no. 3 - Harish Chand Joshi, aged 51 years, is the present Vice President of the society and also the Deputy General Manager, Jindal Saw Ltd., applicant no. 4 -Uday Narayan Singh, aged 66 years, is Secretary of Vartalok Samiti, retired from the post of Dy. Manager, Times of India, New Delhi, applicant no. 5 - Mohan Lal, aged 51 years, is a resident of Vartalok Society and a close associate of the Secretary, Uday Narayan Singh and is a class-I officer in Central Government.
The opposite party no. 2 and her family members were the illegal occupiers of a piece of land on which the hut had been constructed by them, with active help of Yashwant Rana, Managing Editor, India News, his wife Anjana Singh, Shilpi Gupta, the alleged witness of the present case, her husband - Sandeep Gupta, Suresh Dobriyal and Damodar Das Upadhyay. All these persons are the residents of the same society, who at some point of time had been interferring with the functioning of the society and had also encroached over the land belonging to the residents of the society. The notices were issued to them to remove the encroachments. In the year 2013, Rajiv Kumar, the then President of Vartalok Sahkari Awas Samiti, made a complaint to the Superintendent of Police also, about illegal stay of the father of the opposite party no. 2 in the society and that the society and its members were being harassed by Sonu @ Pappu, father of the opposite party no. 2. The threat was given by him to implicate them in false cases.
Sandeep Gupta, who has been helping Pappu, the father of opposite party no. 2, constantly instigated Pappu to give threat to the members and officiating members of the society. Against the bye laws of the society he had given illegal electricity connection to Pappu. He had also encroached upon the land of the society. He was given notice by the society to remove the encroachment but he replied wrongly, claiming the construction to be justified and that the constructions were purely temporary in nature, for securing the privacy of his family. It was made clear by the society that unless he complies with the instructions of the society, the proceeding of the registry of his flat would not be processed and at last a proposal was passed in the general body meeting of Residents Welfare Association of Vatalok Apartment that the steps be taken for cancellation of the allotment of the flat of Sandeep Kumar Gupta. This Sandeep Kumar Gupta is the main person behind Pappu, initiating and pressing the illegal activities on behalf of Pappu, as Pappu having no knowledge of English, he is continuously pressing the proceedings all prepared in English language on the initiation of Sandeep Kumar Gupta. Though Sandeep Kumar Gupta in a bid to misuse the process of law filed a Civil Suit bearing No. 859 of 2018, wherein the society put its appearance and filed its written statement. Sandeep Kumar Gupta also instituted a suit No. 181 of 2019 against applicant no. 5 and father of applicant no. 2 Omendra Pal. It was decided exparte against Sandeep Kumar Gupta. Thus, Sandeep Kumar Gupta and Shilpi Gupta are clearly inimical to the applicants and the opposite party no. 2 is the puppet of these two. Because of illegal connection given to Pappu by Sandeep Kumar Gupta the society had to approach electricity department regarding this illegal activity. The illegal encroachment made by Pappu was being tried to remove since long.
Since the year 2013 and 2014 and till now the applicant no. 4 Uday Narayan Singh, who was the Secretary of the society, was challenging this encroachment and in 2017 it was resolved unanimously by the members of the Vartalok Sahkari Awas Samiti in the general body meeting to get removed the illegal encroachment done by the father of opposite party no. 2, which was given effect on 23.09.2018, which is the date on which this fake incident has been concocted by the opposite party no. 2 to create pressure upon the applicants. As per the resolution of the society, on 09.06.2018 the then District Magistrate, Ghaziabad directed the Circle Officer and S.H.O. to take proper action in the matter as per law and consequently under the video recording, in the presence of the officers of Vartalok Sahkari Awas Samiti and the officers of Residents Welfare Association Vartalok Apartment the encroachment made by the father of the alleged victim was removed by the police after due process. This incident led opposite party no. 2 to start the present malafide proceeding under the guardianship of her mother, who herself had filed the complaint no. 94 of 2018 against Rajiv Kumar, the then President of Vartalok Sahkari Awas Samiti and others, which was dismissed by the court concerned on 18.12.2019, though the order is said to be challenged by the mother of opposite party no. 2.
Thus, it was argued that no such incident as shown in the complaint took place on 23.09.2018. The law made for protection of children has been misused by the guardian of opposite party no. 2 by propping opposite party no. 2 as victim of having suffered indignities at the hands of applicants. The incident is completely false, which has been concocted with a view to create pressure on the officials of the society. Such proceeding cannot be permitted to continue and the court under its extraordinary jurisdiction with a view to impart justice to the applicants may quash the summoning order and the entire proceedings of the complaint.
In support of their version the applicants placed before the court the report of police sent on the application under Section 156 (3) Cr.P.C. of opposite party no. 2, the statement of vicitim and Shilpi Gupta and the list of witnesses supplied by the complainant in the impugned complaint, carbon copy of complaint made by Rajiv Kumar (the then President of the Samiti) to the S.S.P. Ghaziabad on 15.04.2013, various notices issued to Sandeep Kumar Gupta and the replies given by him, photographs of illegal encroachment done by Sandeep Kumar Gupta in the society, copy of plaint of Civil Suit O.S. No. 859 of 2018 (Sandeep Kumar Gupta Vs. Vartalok Sahkari Awas Samiti Limited and others through its President, Rajiv Kumar), orders passed by the court in this suit, order sheet of Civil Suit No. 181 of 2009 (Sandeep Kumar Gupta Vs. Mohan Lal and others, applicant no. 5 in this case), copies of the letters sent to the Executive Engineer, EEEUDD,Vasundhara, Ghaziabad by Vartalok Sahkari Awas Samiti Limited, resolution of general body of the society dated 05.09.2017, copy of the letter to District Magistrate, Ghaziabad dated 09.06.2018 sent by Rajiv Kumar, President of the Samiti regarding encroachment by the father of opposite party no. 2, copy of complaint dated 09.07.2018 made by mother of opposite party no. 2 against applicant no. 4 Uday Narayan Singh, Harish Chand Joshi, applicant no. 3, naming four other persons under Sections 323, 384, 354, 504, 506, 120B IPC and sections of SC/ST Act, CCTV footage and video clip prepared by the mobile regarding the proceedings of the removal of encroachment both dated 23.09.2018, copy of complaint dated 04.02.2017 by Pappu @ Sonu, father of opposite party no. 2 to SHO, Indrapuram, order of Special Judge, SC/ST Act dated 18.12.2019 dismissing the complaint of Rajni, the mother of opposite party no. 2, photocopy of caste certificate of the applicant Mohan Lal, a report from SIFS India Forensic Lab. dated 29.12.2020 to prove that the video clipping filed by the applicants are not tempered.
In reply, the counter affidavit has been filed by Pappu, father of opposite party no. 2 that he was living in a hut at gate no. 2 in Vartalok Apartment, Sector-4C for the last more than 17 years. Some of the applicants along with some other residents of the society misbehaved with his wife and demanded Rs. 1,00,000/- per year to permit him to reside in the hut for doing the ironing work in the apartments and when this demand of their was not fulfilled he and his family members were abused and given threat. On number of occasions his FIR could not be lodged, though, complaint no. 94 of 2018 was lodged by his wife against 06 persons including some of the applicants on 09.07.2018. The applicants are highly influential persons. They were infuriated coming to know about this complaint, which resulted in the incident dated 23.09.2018 and with intervention of some residents of the apartment including Shilpi Gupta and her husband, his (Pappu) life was saved from the applicants. His FIR was not lodged by the police officer Sachin Malik. Even if his construction was unauthorised the same could be removed through legal procedure only and not by the force. As admitted in the present case, his house was demolished in connivance of the police. He had been residing in the hut for the last 17-18 years. He served as a labourer for the constructions of Vartalok Apartment, thereafter, he is ironing clothes of the residents of the apartment since long. There was no occasion to file false complaint against the applicants. When the incident of 23.09.2018 was committed with his daughter then the complaint was filed in that matter. As he was residing in the apartment since last 17-18 years, Sandeep Kumar Gupta gave him electricity connection, who lives on the ground floor of the apartments, so that his daughter, opposite party no. 2 could study during night. He never charged any money from him and pays electricity bills from his own pocket. He is a washerman and does the job of ironing clothes. He has nothing to do with the dispute of Samiti and Sandeep Kumar Gupta. As the applicants are highly placed persons, having their own flats in the apartment, this does not justify the incident dated 23.09.2018. The applicants in connivance of local police demolished his entire house and also damaged the house hold property just to take revenge with his wife who filed complaint no. 94 of 2018 against illegal demand of Rs. 1,00,000/- by the applicants. The District Magistrate is not the competent authority to get his house removed. The only recourse available to the applicants was to file an ejectment suit. The pendrives have not been supplied to him, therefore, he is not in a position to comment regarding the same.
Along with his reply, copy of the complaint made by the wife of Pappu dated 09.07.2018, certified copy of the order sheet of that court and letter of Chief Secretary, U.P. State, that government orders do not authorise any authority to enter into any private dispute of two persons, have been filed. From the State side also, counter affidavit has been filed. It is stated therein that under Section 14A of SC/ST Act only an appeal is maintainable, hence, the present proceedings are said to be not maintainable.
Rejoinder affidavit reiterating the previous version has been filed by the applicants.
Thus, on the basis of the pleadings, it is argued by the learned counsel for the applicants that the complaint has been filed against the applicants with the connivance of Sandeep Kumar Gupta and his wife just to take revenge of removal of encroachment done by the father of the opposite party no. 2. By placing judgement of this court in Criminal Misc. Bail Application No. 33075 of 2018 - Rinku Vs. State of U.P., it is argued by the learned counsel for the applicants that when apart from sections of IPC, the proceedings were also under POCSO Act and SC/ST Act, only POCSO court would have the jurisdiction to entertain such proceeding, as is done in the present case and it is argued that as the impugned summoning order was passed by the POCSO court itself, so Section 14A of SC/ST Act would not apply.
While learned counsel for the opposite party no. 2 placed before the court the judgements in Criminal Appeal No. 330 of 2021 - M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others (SC), Attorney General for India; National Commission for Women; State of Maharashtra; Satish Vs. Satish and another, State of Maharashtra and another, Libnus, 2021 LawSuit (SC) 739, Phool Singh Vs. The State of Madhya Pradesh, 2021 0 Supreme (SC) 760, Order dated 05.05.2022 passed by the Supreme Court in Criminal Appeal No. 741 of 2022 - Jagmohan Singh Vs. Vimlesh Kumar and others, State of Uttar Pradesh and another Vs. Akhil Sharda and others, 2022 0 Supreme (SC) 598, and judgement dated 30.06.2021 of this court passed in Application U/S 482 No. 5690 of 2021 - Jahur Khan and 4 others Vs. State of U.P. and another, and submitted that at this stage of 482 Cr.P.C. the court has not to look into the correctness of the allegations made in the complaint nor the court has to look into the defence of the applicants. As the complaint discloses commission of a cognizable offence, there is no irregularity or illegality in the order summoning the applicants. It is argued that the court should not embark upon an enquiry about the facts whether there is reliable evidence or not. The jurisdiction under Section 482 Cr.P.C. is to be exercised sparingly, carefully and with caution, when the criminal proceeding can be said to be an abuse of the process of the court, to warrant intervention under Section 482 Cr.P.C. From the FIR a cognizable offence is clearly made out and the charge sheet has also been filed under the cognizable sections, the court has no ground to interfere in the criminal proceeding in exercise of its power under Section 482 Cr.P.C.
If we go through the above pleadings, it is found that the application under Section 156 (3) Cr.P.C. was filed by minor aged about 15 years against five applicants and after receiving the report of the police station that the incident is false this application was registered as a complaint. The complainant being minor has not been represented in the court by her guardian rather she has been represented by pairokar Smt. Rajni w/o Pappu. Smt. Rajni may be the mother of the minor but the representation of the minor must be proper. The minor had to appear in the court through her legal guardian and not through a pairokar, hence, the complaint cannot be said to be filed by a proper person.
Again, the counter affidavit in the present proceedings has not been filed by the mother of the victim, who is mentioned as legal guardian of the minor in the counter affidavit, but the counter affidavit has been filed by Pappu, the father of opposite party no. 2 and under what capacity the counter affidavit has been filed by Pappu is not made clear. The third witness, in the list, mother of the minor, who is said to be witness of the incident from the initial stage, has not been produced before the trial court. The overwriting on the date of incident, in the statement of Shilpi Gupta has also been ignored by the trial court.
In the whole complaint, it is nowhere mentioned that the complainant, the present opposite party no. 2, belongs to SC/ST and the opposite parties (present applicants) belong to general category. From the caste certificate produced by the applicants counsel, Mohan Lal, applicant no. 5 appears to belong to the scheduled caste. No explanation has been tendered by the learned counsel of opposite party no. 2 in this regard.
It is true that the power under Section 482 Cr.P.C. be used sparingly in rare and exceptional cases but in the case law, State of Haryana and others Vs. Bhajan Lal and others, (1992 Suppl (1) SCC 335), the Apex Court held that in the case where the allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion, that there is sufficient ground for proceeding against the accused and whether a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to personal grudge, the court can exercise its power.
From perusal of the record, it is found that it is the version of the opposite party no. 2 that since last 17 years the father of the opposite party no. 2 was residing in the society by making a hut, the legal right of the father of opposite party no. 2 regarding making hut has not been specified. It is also an admitted fact that on the date of incident itself i.e. on 23.09.2018 in the evening his hut and the alleged encroachment done by him was removed with the help of police in supervision of the applicants and in the presence of the officers of Vartalok Sahkari Awas Samiti. When the hut was removed on the very same day of the alleged incident and video and mobile clippings of the hut (tin shed), which is said to be the place of incident, from 2 p.m. to 6.30 p.m. are placed before the court and at that time there could be no occasion for the applicants to commit the said offence with the minor girl - opposite party no. 2 Admittedly an illegal electric connection was given to the father of the opposite party no. 2 by one Sandeep Kumar Gupta that was being used by the family of opposite party no. 2 for the last 10 years without any lawful authority. The illegal electric connection taken by the father of opposite party no. 2 and the hut made by him in the society without any allotment in his name have been admitted by the father of the opposite party no. 2. The two pendrives of the whole incident from 2.00 p.m. to 6.30 p.m. have been filed by the applicants showing the whole incident of the removal of the illegal encroachment made by Pappu, the father of opposite party no. 2. As the tin shed where the incident took place, is said to have been covered with the view of CCTV camera, the applicants have filed three clippings of the CCTV footage and two clippings made by mobile of that area of the time including the period of alleged incident shown in the complaint, wherein no such incident has been shown. If it was so, the opposite party no. 2/her parents were free to file the CCTV footage of that area of the time of incident, but it has not been done by them. Rather at the time of the incident at about 6 to 8 p.m. many times the alleged victim and her parents are seen resisting and arguing with the police and other persons. If any incident as alleged in the complaint had taken place at 5 p.m. that day, the victim and her family members could have made a complaint to the police at that time but no such complaint was made to the police rather the victim is seem opposing the incident with full enthusiasm and strength.
No medical examination/injury report is said to have been prepared regarding the incident with the victim. The documents filed by the applicants above are on record, which show that in support of the complaint filed by the opposite party no. 2, only Shilpi Gupta has come forward to give statement against the applicants in the court under Section 202 Cr.P.C., while long proceedings by the Residents Welfare Association of the society were running against her husband regarding the illegal encroachment and illegal electricity supplied by him (Sandeep Kumar Gupta) to the parents of opposite party no. 2. The documents on record show that whenever any proceeding was used to start against the parents of the opposite party no. 2, they used to give threat to the applicants/then officialsofficers of Residents Welfare Association of the society to indulge them in the false cases and specifically a case under Sections of SC/ST Act. On 09.07.2018 the mother of the opposite party no. 2 had filed a complaint under Sections 323, 384, 354, 504, 506, 120B IPC and sections of SC/ST Act against Uday Narayan Singh, Harish Chand Joshi and four others, which is said to have been dismissed vide order dated 18.12.2019 of the Court of Special Judge. Though, this order is said to have been challenged in this court.
It is also the version of the applicants that in continuance of process issued by the applicants for removal of illegal encroachment done by the parents of the opposite party no. 2, including opposite party no. 2, with connivance of Sandeep Kumar Gupta, his wife Shilpi Gupta, Yashwant Rana and his wife Anjana Singh entered in the house of the applicant Dushyant Singh on 16.09.2018 and gave threat to the mother of Dushyant that they would not spare her son. The pregnant wife of Dushyant Singh was pushed down with intention of aborting her child. FIR with regard to the incident was registered under Sections 316, 387, 389, 452, 500, 506, 507, 511, 120B IPC. The above named accused persons being related to media started covering on media and India news that it was an harassment done by the powerful persons. A demand of Rs. 60 lacs was made to withdraw the complaint against the applicant and various threats were given to him. All this clearly shows that the complaint is nothing but a sheer misuse of the process of law, made for the protection of the children.
In the judgements placed before the court by the learned counsel for the opposite party no. 2 itself, it has been held that the power under Section 482 Cr.P.C. can be exercised when it is justified and when going through the material on record the court could reasonably arrive at a finding that the proceedings are the abuse of the process of the court. In the judgement Bhajan Lal (Supra) it has been held that when a criminal proceeding is manifestly attended with malafide and where the proceedings is maliciously instituted with an ulterior motive with a view to spite a person due to private and personal grudge, the power under Section 482 Cr.P.C. should be exercised.
In state of Karnataka Vs. L. Muniswamy, (1977) 2 SCC 699, the three Judges Bench of the Apex Court held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court. Paragraph-'7' of the judgement can be quoted as under:-
"7. ......In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to law made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
A three Judges bench in State of Karnataka Vs. M. Devendrappa, (2002) 3 SCC 89, analysed the scope of Section 482 Cr.P.C. and laid down that the authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. Paragraph-'6' of the judgement can be quoted as under:-
"6........All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice........Inherent jurisdictin under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist."
Thus, from the above discussion, it reflects that to prevent abuse of the process of law or otherwise to secure the ends of justice, the entire proceeding of Complaint Case No. 77 of 2018 (X Kumari Vs. Sanjeev Sahu and others) needs to be quashed.
So far as the argument that this court has no jurisdiction to hear the case against summoning order under Section of SC/ST Act is concerned, the impugned order has been passed by the POCSO court and not by the SC/ST Court. As per judgement of the coordinate bench of this court in Rinku (supra) the court found that when in a case the offences both under POCSO Act and SC/ST Act are arising out of same crime and may be tried at the same time, the Special Court of POCSO would have jurisdiction. Though, it is argued that this judgement is about the bail application but in the opinion of the court, Section 14A of SC/ST Act provides a provision of appeal from any judgement, sentence or order of a Special Court and with regard to SC/ST Act, the Special Court shall be the SC/ST Court and not the POCSO Court. The impugned order has been passed by the POCSO Court, so in my opinion the argument of the learned counsel for the opposite party no. 2 in this regard is not tenable.
In view of the above discussion, the summoning order dated 29.11.2018 passed by the Special Judge, POCSO Act/Additional Sessions Judge, Court No. 6, Ghaziabad and the entire proceedings of Complaint Case No. 77 of 2018 (X Kumari Vs. Sanjeev Sahu and others) under Sections 354, 354B, 452, 504, 506 IPC, Section 7/8 of the POCSO Act and Section 3 of the SC/ST Act, Police Station Indrapuram, District Ghaziabad pending before the 6th Additional District Judge/Sessions Judge, Ghaziabad, are quashed.
The application under Section 482 Cr.P.C. is, thus, allowed.
Order Date :- 28.02.2023 gp